Faalevao v. Mechem et al

Filing 35

MEMORANDUM, DECISION and ORDER RE: Defendant's 25 Motion to Compel signed by Judge Oliver W. Wanger on 5/16/2011. (Kusamura, W)

1

UNITED STATES DISTRICT COURT

2

FOR THE EASTERN DISTRICT OF CALIFORNIA

3
4

LIA CHARLENE FAALEVAO,

5
6
7
8

1:10-cv-00688 OWW GSA

Plaintiff,

MEMORANDUM DECISION AND ORDER
RE DEFENDANTS‟ MOTION (1) TO
COMPEL ANSWERS TO
INTERROGATORIES, (2) TO
COMPEL RESPONSES TO REQUESTS
FOR PRODUCTION OF DOCUMENTS,
(3) TO COMPEL ATTENDANCE AT
PHYSICAL EXAMINATION, (4) TO
COMPEL ATTENDANCE AT
DEPOSITION, (5) TO MODIFY
SCHEDULING ORDER DATES, AND
(6) TO CONTINUE THE TRIAL
DATE, OR, IN THE ALTERNATIVE,
(7) TO DISMISS THE ACTION.

vs.
TIMOTHY DAVENPORT MECHEM AND
ALLSTATE INSURANCE COMPANY,

9

Defendants.

10
11
12
13

(DOC. 25)

14
15
16

I.

INTRODUCTION

Before the court is Defendant Timothy Mechem’s (“Defendant”)

17
18
19

Motion (1) to Compel Answers to Interrogatories, (2) to Compel
Responses to Requests for Production of Documents, (3) to Compel

20

Attendance at Physical Examination, (4) to Compel Attendance at

21

Deposition, (5) to Modify Scheduling Order Dates, and (6) to

22

Continue the Trial Date, or, in the Alternative, (7) to Dismiss

23

the Action. (Doc. 25). Plaintiff, appearing pro se and proceeding

24
25
26
27

in forma pauperis, did not file an opposition. The matter was
heard May 9, 2011. Plaintiff did not make an appearance at the
hearing.

28
1

1
2

II.

FACTUAL BACKGROUND

This is a personal injury action arising from an automobile

3

accident between Plaintiff and Defendant occurring on or about

4

April 17, 2008. Plaintiff filed a Complaint on April 19, 2010.

5

(Doc. 1). Defendant Allstate Insurance Company was dismissed from

6
7
8

the action on August 9, 2010. (Doc. 12).
A scheduling conference order dated December 8, 2010 set the

9

following schedule: (1) January 31, 2011: deadline for Rule 26(a)

10

disclosures; (2) April 1, 2011: deadline for written disclosures

11

of expert witnesses; (3) May 2, 2011: deadline for rebuttal or

12

supplemental expert disclosures; (4) June 1, 2011: discovery cut-

13
14

off; (5) June 15, 2011: deadline for non-dispositive pre-trial
motions; (6) July 1, 2011: deadline for dispositive pre-trial

15
16

motions; (7) July 13, 2011: settlement conference; (8) September

17

12, 2011: pre-trial conference; and (9) October 25, 2011: 4-day

18

jury trial.
III. LEGAL STANDARD AND ANALYSIS

19
20

A.

MOTION TO COMPEL DISCOVERY

21

“Parties may obtain discovery regarding any nonprivileged

22

matter that is relevant to any party's claim or defense.” Fed. R.

23

Civ. P. 26(b)(1). “Relevant information need not be admissible at

24
25
26
27
28

trial if the discovery appears reasonably calculated to lead to
the discovery of admissible evidence.” Id. The Federal Rules of
Civil Procedure create a “broad right of discovery” because “wide
access to relevant facts serves the integrity and fairness of the
2

1

judicial process by promoting the search for truth.” Epstein v.

2

MCA, Inc., 54 F.3d 1422, 1423 (9th Cir. 1995).

3
4

A party seeking discovery may move to compel disclosure or
discovery under Rule 37(a)(1):

5
6
7
8
9
10

On notice to other parties and all affected persons, a party
may move for an order compelling disclosure or discovery.
The motion must include a certification that the movant has
in good faith conferred or attempted to confer with the
person or party failing to make disclosure or discovery in
an effort to obtain it without court action.
Fed. R. Civ. P. 37(a)(1).
1.

11
12
13
14

Interrogatories, Requests for Production of
Documents, Rule 26 Disclosures

Defendant seeks an order compelling Plaintiff: (1) to
respond to Defendant‟s interrogatories and requests for
production of documents, which were served on Plaintiff December

15
16
17

18, 2010; and (2) to provide Rule 26 disclosures, which were due
January 31, 2011. Defendant‟s counsel submits a declaration

18

describing his repeated attempts (i.e., numerous phone calls,

19

letters, and e-mails) to confer with Plaintiff to obtain the

20

requested discovery without court action. (Doc. 27). Plaintiff

21

has provided no excuse or justification for the failure to

22
23

provide the requested discovery and Rule 26 disclosure.
Defendant‟s motion to compel discovery is GRANTED. Plaintiff

24
25

shall provide the Rule 26 disclosures and respond to Defendant‟s

26

interrogatories and requests for production of documents within

27

thirty (30) days following service of an order on this memorandum

28

decision.

3

1
2
3
4

2.

Compel Attendance at Physical Examination and
Deposition

Defendant seeks an order compelling Plaintiff to attend a
medical examination at 10:00 a.m. on June 9, 2011 and a 3:00 p.m.

5

deposition that same day, subject to Defendant‟s payment of

6

Plaintiff‟s reasonable travel expenses from Portland to Fresno.

7

Defendant alleges that during December 2010 and January 2011,

8

Defendant attempted to arrange Plaintiff‟s medical examination

9
10

and deposition. The parties tentatively agreed that Defendant
would pay Plaintiff‟s travel expenses from Portland to Fresno and

11
12

that the deposition and medical examination would take place on

13

April 14, 2011. Approximately two weeks before Defendant filed

14

this motion, Plaintiff advised that a problem with her father and

15

family required her to travel to American Samoa. Plaintiff

16

requested that Defendant pay her travel expenses from American

17

Samoa to Fresno to attend the deposition and medical examination.

18
19
20
21

On March 11, 2011, Plaintiff called and emailed Defendant to
confirm her plan to leave for American Samoa at the end of March
for two or three months, possibly longer, and requested that the

22

medical examination and deposition be scheduled after mid-May, at

23

the earliest.

24
25
26
27
28

Defendant‟s motion to compel Plaintiff‟s attendance at a
medical examination and deposition on June 9, 2011 is GRANTED,
subject to Defendant‟s payment of Plaintiff‟s traveling expenses
from Portland, Oregon to Fresno, California.
4

1

B.

2

Defendant requests a five-month continuance of all dates in

3
4
5

MOTION TO MODIFY SCHEDULING ORDER AND TRIAL DATE

the scheduling order, including the trial date.
Dates in a Rule 16 scheduling order may be modified “only
for good cause and with the judge’s consent.” Fed. R. Civ. P.

6
7
8

16(b)(4). Rule 16(b)'s “good cause” standard primarily considers
the diligence of the party seeking amendment. Johnson v. Mammoth

9

Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). Diligence

10

should not be confused with carelessness, which is not grounds

11

for relief. Id. “Although the existence or degree of prejudice to

12

the party opposing the modification might supply additional

13
14

reasons to deny a motion, the focus of the inquiry is upon the
moving party's reasons for seeking modification.” Id. If the

15
16

moving party was not diligent, the inquiry should end. Id.

17

There is good cause to modify the scheduling order.

18

Defendant has been diligent in his efforts to obtain discovery

19

and to meet the scheduling order deadlines. Plaintiff has not

20

responded to Defendant‟s discovery requests, has not provided

21

Rule 26 disclosures, has been in American Samoa since March, and

22

has not submitted to a deposition and medical examination.

23
24
25

Through no fault of his own, Defendant has not been able to
disclose expert witnesses before April 1, 2011 or disclose

26

rebuttal or supplemental expert witnesses before May 2, 2011. The

27

June 1, 2011 discovery cut-off deadline is fast approaching. The

28

5

1

deadlines in the scheduling order, including the trial date,

2

shall be continued. Defendant‟s motion to modify the scheduling

3

order and trial date is GRANTED.

4

C.

5

MOTION TO DISMISS

Defendant moves to dismiss the action pursuant to Rule 37

6
7

for Plaintiff‟s failure to comply with Rule 26.
Rule 26(a)(1) requires that parties make initial disclosures

8
9

at or within 14 days after the parties‟ Rule 26(f) conference,

10

unless a different time is set by court order. Here, the

11

scheduling order required Rule 26(a) disclosures by January 31,

12

2011.

13
14
15
16

Rule 37(c)(1), which gives teeth to Rule 26, Yeti by Molly,

Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir.
2001), provides:

20

If a party fails to provide information or identify a
witness as required by Rule 26(a) or (e), the party is not
allowed to use that information or witness to supply
evidence on a motion, at a hearing, or at a trial, unless
the failure was substantially justified or is harmless. In
addition to or instead of this sanction, the court, on
motion and after giving an opportunity to be heard:

21

(A)

17
18
19

22
23
24
25

(B)
(C)

May order payment of the reasonable expenses, including
attorney‟s fees, caused by the failure;
May inform the jury of the party‟s failure; and
May impose other appropriate sanctions, including any
of the orders listed in Rule 37(b)(2)(A)(i)-(vi).

Fed. R. Civ. P. 37(c)(1). Sanctions may include “dismissing the

26

action or proceeding in whole or in part.” Fed. R. Civ. P.

27

37(b)(2)(a)(v).

28

The district court has wide latitude to issue sanctions
6

1

under Rule 37(c)(1). Yeti, 259 F.3d at 1106. There are two

2

express exceptions to Rule 37(c)(1): the failure to provide the

3

information or witness was substantially justified or was

4

harmless. Id. Sanctions are also not ordinarily applied where the

5
6
7

defaulting party made a good-faith effort to comply. Porter v.

Martinez, 941 F.2d 732, 734 (9th Cir. 1991) (holding that

8

dismissal of a homeless, indigent and severely handicapped

9

individual's civil rights action for failure to comply with

10

discovery orders was an abuse of discretion, where plaintiff had

11

attempted to comply with defendant‟s massive discovery requests

12
13
14
15

and failure to fully comply did not rise to level of flagrant bad
faith)).
Defendant contends that since Plaintiff has not made any

16

Rule 26 disclosures, she cannot call any witnesses or introduce

17

any documents at trial. Defendant argues that since Plaintiff has

18

the burden of proof on negligence and damages, she cannot prove

19

her case at trial and the action should be dismissed.

20
21

“A district court has the discretion to impose the extreme
sanction of dismissal if there has been „flagrant, bad faith

22
23
24

disregard of discovery duties.‟” Id. at 733 (quoting Wanderer v.

Johnston, 910 F.2d 652, 655-56 (9th Cir. 1990)). A district court

25

weighs five factors in determining whether to dismiss a case as a

26

sanction: “(1) the public's interest in expeditious resolution of

27

litigation; (2) the court's need to manage its docket; (3) the

28

7

1

risk of prejudice to the defendants; (4) the public policy

2

favoring disposition of cases on their merits; and (5) the

3

availability of less drastic sanctions.” U.S. for Use & Ben. Of

4
5
6
7

Wiltec Guam, Inc. v. Kahaluu Const. Co., Inc., 857 F.2d 600, 603
(9th Cir. 1988) (quoting Malone v. U.S. Postal Serv., 833 F.2d
128, 130 (9th Cir. 1987)).

8

The totality of the five factors weighs against dismissing

9

Plaintiff‟s case. The public interest in expeditious resolution

10

of the litigation and the court‟s need to manage its docket weigh

11

in favor of sanctions, as Plaintiff‟s failure to provide Rule 26

12
13
14
15

disclosures has resulted in delay of the case schedule and trial
date. The third factor weighs against sanction: Defendant has not
asserted any prejudice resulting from Plaintiff‟s delay;

16

Defendant‟s motion was filed a month and a half after the Rule 26

17

deadline; and the entire case schedule will be modified. The

18

fourth factor, public policy favoring disposition of cases on

19

their merits, weighs heavily against dismissal. Lastly, there are

20

less drastic sanctions available than dismissal; however, because

21

Plaintiff is indigent, monetary sanctions will not be imposed at

22
23
24

this time.
Defendant‟s motion to dismiss is DENIED without prejudice.

25

Plaintiff is expressly warned that any future failure to timely

26

comply with schedules and orders, unless supported by convincing

27

evidence of good cause given before expiration of the deadline,

28

8

1

will not be tolerated and will result in sanctions.

2
3
4
5

IV.

CONCLUSION

For the reasons stated:
1. Defendant’s Motion to Compel is GRANTED in part and DENIED
in part, as follows:

6
7
8
9
10
11
12
13
14

a. Defendant’s motion to compel answers to
interrogatories, requests for production of documents,
and Rule 26 disclosures is GRANTED.
b. Defendant’s motion to compel Plaintiff’s attendance at
a physical examination and deposition is GRANTED.
c. Defendant’s motion to modify the scheduling order and
continue the trial date is GRANTED.
d. Defendant’s motion to dismiss is DENIED.

15
16

2. Defendant shall submit a proposed form of order consistent

17

with this memorandum decision within five (5) days following

18

electronic service of this memorandum decision.

19

SO ORDERED.

20

DATED: May 16, 2011

21
22

_/s/ Oliver W. Wanger____ _
Oliver W. Wanger
United States District Judge

23
24
25
26
27
28

9